Pfluger v. Schoen

Decision Date07 April 1920
Docket Number(No. 6375.)
Citation221 S.W. 1090
PartiesPFLUGER et al. v. SCHOEN.
CourtTexas Court of Appeals

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by Julius Schoen against G. C. Pfluger and another. Judgment for plaintiff, and defendants appeal. Affirmed.

White, Cartledge & Wilcox, of Austin, for appellants.

Dickens & Dickens, of Austin, for appellee.

COBBS, J.

This suit was brought by Julius Schoen, appellee, against G. C. Pfluger and Eugene Priess, appellants herein, for damages for an alleged assault and battery committed by them acting together as principals. It was alleged that defendant Eugene Priess, "by the use of great violence and force, struck the plaintiff over his head with an iron or metal handle of said shovel," and that G. C. Pfluger, "with great force and violence, crashed the flat or slightly curved iron or metal blade of same, about 8×12 inches in size, against the back and rear right side of plaintiff"; that, in thus assaulting plaintiff within a period of from five to ten minutes, the defendants inflicted injuries upon plaintiff causing actual damage; and plaintiff prayed for judgment in the sum of $10,000 actual damages.

After the usual form of demurrers, general and special, and general denial, defendants pleaded that if either made an assault it was in self-defense, and further answered:

"For further answer herein, if such answer be required, defendants represent that, prior to the occasion of the alleged assault upon the plaintiff, the plaintiff had threatened personal violence to these defendants, which threats had been communicated to them; that on or about October 14, 1918, the defendant Eugene Priess sent certain laborers to a tract of pasture land owned and controlled by him, for the purpose of erecting an earthen tank thereon; that the plaintiff came to the place where the said laborers were preparing to make said tank, and by threats of personal violence upon said laborers prevented them from performing said work, and plaintiff on said occasion renewed his threats of personal violence to these defendants, which threats were communicated to them by said laborers; that on or about October 15, 1918, these defendants went to the site selected for the building of said tank for the purpose of beginning the construction of same; that thereupon the plaintiff, Julius Schoen, came to where these defendants were preparing to begin the construction of said tank, and forbade these defendants to proceed with said work, and threatened personal violence toward these defendants unless they desisted from the construction of said tank, and by words and threats, and by placing themselves in the way of the teams and workmen engaged in such work, obstructed the work defendants were endeavoring to do; that plaintiff, upon ascertaining that defendants intended to continue the work of the construction of said tank, and in pursuance to the threats he had previously made, advanced upon and attacked these defendants. Defendants allege that if they, or either of them, assaulted or struck the plaintiff, then they each allege that at such time the plaintiff was advancing upon such defendant, and was about to make and was making an attack upon such defendant, which acts, taken in connection with plaintiff's threats theretofore made, as aforesaid, and such defendant's knowledge of the character and disposition of plaintiff, and the other attendant circumstances, caused such defendant to believe that plaintiff was about to inflict physical injury upon him, and that such assault, if any was made by such defendant, was in necessary self-defense.

"Each of the defendants allege, respectively, in the alternative, that if either of them assaulted or struck the plaintiff, then that at such time the plaintiff was advancing upon the other defendant herein, and was about to make and was making an attack upon such other defendant, which attack, or apparent attack, taken in connection with plaintiff's threats theretofore made, as aforesaid, and such defendant's knowledge of the character and disposition of plaintiff, and the other attendant circumstances, caused such defendant to believe that plaintiff was about to inflict physical injury upon such defendant, and that such assault, if any, was made in the necessary defense of such other defendant."

The court overruled all the exceptions and demurrers, to which defendants excepted, and on request of appellant the case was submitted on special issues.

The charge of the court and special issues, after explaining the law of self-defense, and the law of principals, submitted to the jury, were as follows:

"Question No. 1. Were the defendants acting together as principals at the time they struck the plaintiff, as the term `principal' has been herein defined and explained by the court?

"Answer. Yes.

"Question No. 2. Was the defendant Gottlieb C. Pfluger acting in self-defense at the time or times that he struck the plaintiff with a shovel, as the term `self-defense' has been herein defined and explained by the court?

"Answer. No.

"Question No. 3. Was the defendant Eugene Priess acting in self-defense at the time or times that he struck the plaintiff with a shovel, as the term `self-defense' has been herein defined and explained by the court?

"Answer. No.

"Question No. 4. What sum of money, if cash in hand paid to the plaintiff at this time, will fairly, justly, and reasonably compensate him for the injuries received?"

"Answer. $3,750.00."

On the answers to these issues judgment was entered in favor of appellee against appellants for $3,750, as found by the jury.

The testimony fully supports the assault and battery and the injuries resultant therefrom, but, on the facts established, appellants' defense is that they were acting in self-defense; that they were not acting together as principals in the fight; that during the time from its beginning to its close there had been a cessation of hostilities, and renewed by appellees or some one of them, and not appellants and in each case each pleaded separately he was acting purely in self-defense, and that it was not a continuous engagement from the beginning to the end.

The first issue the court submitted to the jury was to find whether the defendants were acting together as principals.

It cannot be denied, and is not, that appellants, or one of them, struck appellee, whether done in self-defense or in a continual fight, slightly abated, then again renewed. Appellants do not pretend to deny the assault, but claim they were fighting in self-defense each, and not as principals acting together in a common assault, but each man was for himself in defense of his person, and, while there was an intermission in the battle, it was again renewed by the appellees or some of them.

The controversy began over the digging of a tank on pasture land used in common between appellee and defendants, best explained by testimony of G. C. Pfluger, in effect, that the place on which appellee resided belonged to his mother's estate. The farm was rented to him, but not the pasture where the tank was to be constructed, and the place where the fight occurred. He went with Priess and others to the place where the tank was to be constructed and began the work. Already appellee had sent threats of trouble if the tank was attempted to be constructed. It is not necessary to detail the evidence as to how the fight began at the tank, but the appellants went to the tank together to build it; and the appellee no doubt went to the tank together with his son, to resist its construction, and while there the fight began and the injuries were inflicted. There was evidence enough to support the finding of the jury that they were principals and acting together on one side of the engagement, and appellee and his son on the other. The court also fairly submitted the issue as to whether Gottlieb C. Pfluger was acting in self-defense, and the jury found he was not; and likewise whether Eugene Priess was acting in self-defense, and the jury found he was not. The issues thus submitted, were the appellants acting as principals or whether in self-defense, and upon each of those issues the jury found against appellants. Whether the testimony is satisfactory or not, there was testimony pro and con, and the jury found against appellants, and the court refused to set it aside.

The appellants, however, in their first assignment, complain there was error in the first question submitted to the jury, because it assumes that the defendants were acting together, each time, when either of them struck plaintiff. The appellant does not make his position very clear on this point, and cites no authority, because he says none is necessary. We do not see very well how the court could do otherwise, in the light of the testimony, than ask the jury if they were acting together as principals within the meaning of principals as the court had defined and explained to them. They were all engaged in a general assault, once begun, was continuing until separated. It may have been sporadic from time to time during the engagement, and hostilities ceased a moment then started again—up and at it—but it was the same old fight. It was a common engagement—upon the one side were appellants, and the other side the appellee.

We agree with appellant that the court treats of the so-called several attacks by the respective defendants upon plaintiff as one or a joint attack, and that seems the correct view, and that was not invading the province of the jury in submitting the issue as done.

There is ample evidence to support the findings of the jury, which were based upon testimony showing that the defendants went together to build the tank, knowing that there was a likelihood of having a difficulty. It is true they perhaps had as much right on the ground as appellee had. It is not for us to say who were the aggressors and who...

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